MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 4 February 2003
         DOCKET NUMBER: AR2002079629

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Mr. Melvin H. Meyer		Chairperson
Mr. Curtis L. Greenway		Member
Mr. Ronald J. Weaver		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

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APPLICANT REQUESTS: In effect, that his undesirable discharge (UD) be upgraded to an honorable discharge (HD); and that the reason for his discharge be changed from Unfitness to Convenience of the Government.

APPLICANT STATES: In effect, that his induction was the result of an error on the part of the Selective Service Board. He claims that he should not have been drafted because he was married, his wife was pregnant in 1963 and the child was born in 1964, and he had a better paying civilian job, which he tried to explain to the Selective Service Board. He contends that he had a valid marriage and he was not separated from his wife. He states that he rented an apartment off base while he was assigned to Fort Benning, Georgia, but his wife became ill and returned home to stay with her parents.

The applicant further contends that his discharge should be upgraded for the following reasons: his behavior was good, as evidenced by his average conduct and efficiency ratings; he has been a good citizen since his discharge; his absent without leave (AWOL) record indicates only minor or isolated offenses; and his ability to serve was impaired by his marital and family problems. The applicant also claims that he is only now requesting an upgrade to his discharge because until recently, he was unaware of the existence of the Army Discharge Review Board (ADRB) of the Army Board of Correction of Military Records (ABCMR).

EVIDENCE OF RECORD: The applicant's military records show:

On 8 April 1964, the applicant was inducted into the Army of the United States for a period of 2 years. He completed training, was awarded military occupational specialty (MOS) 120.00 (Pioneer), and he was assigned to Fort Benning, Georgia.

The applicant’s record confirms that the highest rank he attained while serving on active duty was private first class (PFC). The record documents no acts of valor, significant achievement, or service warranting special recognition. However, it does reveal an extensive disciplinary history

The applicant’s disciplinary record includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following two separate occasions for the offenses indicated: 5 January 1965, for being AWOL from on or about 28 December 1964 to on or about 2 January 1965; and 5 April 1965, for failing to go to his appointed place of duty on 3 April 1965.

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The applicant’s disciplinary record also includes his 26 October 1965 conviction by a special court-martial of four specifications of AWOL for the following periods: on or about 7 June to on or about 16 July 1965; on or about 12 to on or about
16 August 1965; on or about 16 August to on or about 7 September 1965; and on or about 10 to on or about 29 September 1965.

On 21 October 1965, a psychiatric evaluation was completed on the applicant. The examining physician found that the applicant was mentally responsible, able to distinguish right from wrong and to adhere to the right, and had the mental capacity to understand and participate in board proceedings. The physician concluded that a reasonable effort had been made to rehabilitate the applicant and given these attempts had all been unsuccessful, he recommended that the applicant be administratively separated from the Army.

On 2 November 1965, the applicant’s unit commander notified the applicant that he was recommending that he be discharged under the provisions of Army Regulation 635-208, by reason of unfitness. The applicant acknowledged this notification and indicated that he was fully aware that he may receive an UD and that he was entitled to certain rights in connection with the separation action. He completed his election of rights by waiving his right to a hearing before a board of officers and he elected not to submit statements in his own behalf. He further stated that although military counsel had been made available to him, he did not desire counsel.

On 23 November 1965, the applicant’s unit commander recommended that the applicant be discharged under the provisions of Army Regulation 635-208, by reason of unfitness. The unit cited the applicant’s extensive disciplinary record, his lack of motivation for continued service, and his inability to become a satisfactory soldier as the reasons for taking the action. The unit commander further recommended that the applicant receive an UD.

On 6 December 1965, the applicant was separated and received an UD under the provisions of Army Regulation 635-208, by reason of unfitness. At the time of his discharge, he had completed a total of 1 year, 2 months, and 14 days of active military service and had accrued 165 days of time lost due to AWOL and confinement.

Army Regulation 635-208, in effect at the time, set forth the basic authority for the separation of enlisted personnel who were found unfit or unsuitable for further military service. The regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities, were subject to separation for unfitness. An UD was normally considered appropriate.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. The evidence of record shows that the applicant was inducted into the Army in accordance with the applicable law and regulations in effect at the time. Lacking independent evidence to show otherwise, the Board finds this is not a determinate factor in this case. The applicant’s claims that his offenses were minor and isolated, that his ability to serve was impaired by his family problems, and that his post service conduct has been good were also carefully considered by the Board. However, it finds none of these factors, either individually or combined, are sufficiently mitigating to warrant the requested relief.

2. The record also confirms that the applicant’s separation processing was accomplished in accordance with the applicable regulation in effect at the time. The Board is satisfied that all requirements of law and regulation were met and that the rights of the applicant were fully protected throughout the discharge process. It further concludes that the applicant’s discharge accurately reflects his undistinguished overall record of service.

3. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.

4. In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__MHM__ __CLG _ __RJW __ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2002079629
SUFFIX
RECON
DATE BOARDED	2003/02/04
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	1965/12/06
DISCHARGE AUTHORITY	AR 635-208
DISCHARGE REASON	Unfitness
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 360	144.000
2. 191	110.0200
3.
4.
5.
6.